Senate GOP could over-play its hand

Published April 04. 2013 12:01AM

By JONATHAN BERNSTEIN

Barack Obama has gone longer than any previous president without putting someone on the U.S. Court of Appeals for the D.C. Circuit. That record - and the extent of Republican obstruction - will be put to the test next week, now that the Senate Judiciary Committee has finally scheduled a hearing for Sri Srinivasan, Obama's second nominee for the four vacancies on that critical panel.

As Adam Serwer reported for Mother Jones, there is plenty of bipartisan support for Srinivasan in the legal community. Nevertheless, it's not clear whether Democrats will have the votes needed to defeat the now-routine (and outrageous) filibuster that all Obama nominees must overcome.

On the heels of Republicans' successful filibuster of Caitlin Halligan, whose nomination to the D.C. Circuit the White House withdrew March 22, the situation poses a good test of whether Republicans are trying to block any and all Obama candidates for what is widely considered the nation's second-highest court.

And that, in turn, should dictate Democratic strategy going forward. If 41 or more Republicans simply will not vote for anyone to the left of Chief Justice John Roberts, the only option for Senate Democrats will be rules reform. On the other hand, if Srinivasan can be confirmed, Republicans' claims that they are blocking only specific nominees for specific reasons can be taken more seriously. Moreover, Republicans could argue with at least some justification that the process is working: The minority party can effectively veto the occasional nominee it strongly objects to, but the majority normally gets its way.

Some will argue that the majority should always win, but senators from both parties tend to disagree. When, however, the majority rarely wins, that majority eventually will use its numbers to impose reform.

For Democratic senators, this should be pretty big. If Republicans are out to nullify the 2012 election results, Democrats will have to strongly consider fighting back with Senate reform.

Jonathan Bernstein is a political scientist who writes about American politics. He wrote this piece for The Washington Post.